- (1.) The appellant in this appeal by special leave is a registered partnership firm and is carrying on business of manufacturing a number of milk products including Condensed Milk and Condensed Skimmed Milk. By the Finance Act, 1969 item 1B was added to the First Schedule of the Central Excises and Salt Act, 1944- hereinafter called the Excise Act, levying 10% ad valorem duty on "prepared or preserved foods put up in unit containers and ordinarily intended for sale including preparations of ...............milk ..........."In exercise of the powers of the Central Government under sub-rule (1) of rule 8 of the Central Excise Rules, 1944 and in supersession of the earlier notifications the Central Government issued Notification No. G.S.R. 339, dated the 1st March, 1970 exempting prepared or preserved foods falling under Item No. 1 B of the First Schedule of the Excise Act other than those specified in the Schedule annexed to the notification from the whole of the duty of excise leviable thereon. In the Schedule is mentioned as items 12 and 13: "12. Milk powder but excluding such powder specially prepared for feeding of infants." 13. Condensed milk, whether sweetened or not." Thus preparations of milk leviable to excise duty under the Excise Act became exempt from the levy of the duty. But from that exemption were excluded certain milk preparations mentionedin items 12 and 13. On and from the 1st March, 1970 the Excise authorities levied excise duty on condensed milk and condensed skimmed milk manufactured by the petitioner treating both of the them as included in Item 13 of the Exemption Notification, dated the 1st March, 1970. For sometime the petitioner paid excise duty not only on condensed milk but also on condensed skimmed milk. Later he objected to the payment of such duty on the latter product on the ground that condensed skimmed milk fell within the Exemption Notification and not within the excluded Item 13 of that notification. The authorities did not accept his stand to be correct and issued two notices D/-4-8-1971 and 7-8-1971demanding a sum of Rupees 1048/- and Rs. 3,064/- respectively as duty payable on condensed skimmed milk manufactured by the petitioner during certain periods. The petitioner filed a writ application in the Allahabad High Court to challenge the demand of excise duty on condensed skimmed milk.A bench of the High Court took the view that condensed skimmed milk was also condensed milk covered by the excluded Item 13 of the Exemption Notification, dated the 1st March, 1970. It, therefore, dismissed the writ application. Hence this appeal.
(2.) It is well-established by several authorities of this Court that for the purpose of levy of excise duty or any othersimilar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the Statute or the Rules. In this case there are materials to show that condensed milk and condensed skimmed milk are two different items of milk preparations. In common parlance milk means the full cream milk as filched from the cattle. It becomes skimmed milk when cream i.e. fat is extracted frommilk. Thereafter the skimmed milk which also can be called a form of preparation of milk is known as such. It becomes easy to digest and used in preparation of other milk products, which are different the milk products prepared from full cream milk. In the Hand Book on self Removal Procedure under the Central Excise Rules, 1944, 3ad edition published in June,1972 by the Central Board of Excise and Customs is to be found. Instruction 8 (b) to say: "Every assessee is also required to maintain a daily account of important raw materials in Form IV (Annexure II) and also to submit a quarterly return in form RT5 (Annexure III) under Rule 55 of Central Excise Rules, 1944. One or two important raw materials, which have been prescribed for most of the excisable goods under Self Removal Procedure, are shown in Annexure IV. The assessees may maintain daily account and submit quarterly RT5 return only in respect of these specified raw materials". In Annexure IV are to be found Items 13 and 14 respectively in these terms: "13. Milk powder but excluding such powder specially prepared for feeding of infants". "14. Condensed milk whether sweetened or not." In columns 4, under the heading "names of important raw materials" against item No. 13 is mentioned "whole fresh milk/skimmed milk ass the case may be " and against item 14 are found the words "fresh milk/and sugar." It would be noticed that the description in Items 13 and 14 of Annexure IV is identical to that of items 12 and 13 in the list of excluded items from the Exemption Notification. Yet in item milk powder in Annexure IV as against the names of important raw materials, both "whole fresh milk" and skimmed milk" are mentioned. But as against condensed milk only "fresh milk" is mentioned. Such a handling of the description of the milk products and preparations does indicate the Central Government when it mentioned condensed milk in items 13 of the notification dated the 1st March, 1970 it meant to exclude from exemption only condensed milk of full cream milk and not the condensed skimmed milk prepared from skimmed milk. The milk preparationcondensed skimmed milk prepared from skimmed milk fell within the Exemption Notification and not within excluded item 13.
(3.) Some support, although a feeble one, can be lent to the above view with reference to Rule 42 of the Prevention of Food Adulteration Rules, 1955. In Clause (6) of the said Rules mentioned the forms of label to be put on condensed milk and the four types of labels are: (1) "Condensed Full Cream Milk (unsweetened) (2) Condensed Full Cream Milk (sweetened) (3) Condensed Machine-Skimmed Milk or Condensed Skimmed Milk (unsweetened) (4) Condensed Machine-Skimmed Milk or Condensed Skimmed Milk (sweetened)" In Item 13 of the notification when the Government added the words "whether sweetened or not " it did mean to classify the condensed milk of sweetened milk or unsweetened variety but did not intendto include in item 13 condensed skimmed milk whether sweetened or unsweetened.;